A Comparative Analysis of Legislation against Trafficking in Persons in Member States of RCM and its Implementation A Comparative Analysis of Legislation against Trafficking in Persons in Member States of RCM and its Implementation Trends, Strengths, and Limitations Lic. Luis F. Centeno M.

BACKGROUNDCONCEPT INTERNATIONAL REGULATIONS BACKGROUND NATIONAL REGULATIONS TRAFFICKING IN PERSONS

“No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.” Universal Declaration of Human Rights

Based on:  Informed political decisions  Informed legal resolutions  Definite and specific actions  Implementation capacity and willingness

Prior Assessments

Myths  Trafficking in persons is a sexual crime.  Trafficking is a series of preparatory actions.  The purpose of exploitation needs to be consummated in trafficking.  In most cases the victims are…  Slavery is an end.  The Palermo Convention and Protocols are the only fundamental basis on matters of international regulations about trafficking in persons.  Assistance for victims is very costly and unnecessary.  International cooperation does NOT work.  Repatriation always is voluntary and assisted.

Trafficking in Persons is:  The Criminal Act: An Internal Reality  The Victim: Perception of the Victim  The Offender: Perception of the Offender: He/She is the Criminal

What is Trafficking in Persons?  A complex criminal process  A crime against humanity  A transnational and national crime  A crime committed by organized crime groups or individual actors  A criminal process with a serious social impact  A NON-discriminating crime  A crime for economic purposes  A form of modern slavery

What is Trafficking in Persons?  Multiple actions, means, and ends  Invalidates basic human rights  Manifests with or without crossing national borders  Can be committed by an individual, a criminal gang, or a criminal organization  Causes a social imbalance that can harm society  It is a crime that affects us all  Traffickers pursue economic or other benefits  Trafficking in persons produces slaves

International Regulations: What is their Use?

Myths  They are of no use at all.  They are old and outdated documents.  They require the implementation of internal legislation in order to be effective.  No instruments exist that address trafficking in persons, with two exceptions.  Cannot be referred to in criminal and/or administrative proceedings.

21 International Instruments Relating to the Issue of Trafficking in Persons

International Instruments  Universal Declaration of Human Rights, adopted and proclaimed by the United Nations General Assembly, Resolution 217 A (III), December 10,  American Declaration of the Rights and Duties of Man, OAS Res. XXX, approved at the 9th International American Conference (1948).  American Convention on Human Rights, “Pact of San José”, signed at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, November 7-22, Came into force on July 18,  International Covenant on Civil and Political Rights, adopted and opened to signing, ratifying, and adhesion by the United Nations General Assembly, Resolution 2200 A (XXI), December 16, Came into force on March 23, 1976, in accordance with Article 49.

International Instruments  Convention on Slavery, signed in Geneva on September 25, 1926 and its Protocol adopted by the United Nations General Assembly, Resolution 794 (VIII), October 23,  Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, Adopted by a Conference of Plenipotentiaries convened by the Economic and Social Commission, Resolution 608 (XXI), April 30, Developed at the United Nations European Office, Geneva, September 7, Came into force in  Convention 29 of ILO concerning Forced or Compulsory Labour which came into force on May 1,  Convention 105 of ILO concerning the abolition of forced labour, which came into force on January 17, 1959.

International Instruments  Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, United Nations General Assembly Resolution No. 40/34,  Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 1949, United Nations General Assembly Resolution No. 317 (IV).  United Nations Convention Relating to the Status of Refugees of 1951 and its Protocol of  Convention on the Elimination of All Forms of Discrimination Against Women, 1979, United Nations General Assembly Resolution No. 34/180.  Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women (Convention of Belem do Para), adopted in Belem do Para, Brazil on June 9, 1994, during the XXIV Ordinary Period of Sessions of the OAS General Assembly.

International Instruments  Convention against Transnational Organized Crime, UN General Assembly Resolution No. 55/25, November 15,  Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially Women and Children, complementing the UN Convention Against Transnational Organized Crime. Adopted by the UN General Assembly, November 15,  Rome Statute of the International Criminal Court, approved on July 17, 1998 by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Came into force on July 1,  2nd World Congress Against Commercial Sexual Exploitation of Children: Yokohama Global Commitment 2001.

International Instruments  Inter-American Convention on International Traffic in Minors signed in Mexico City, Mexico on March 18,  Convention on the Rights of the Child (UNCRC), 1989 (UN General Assembly Resolution No ).  Convention 182 – ILO, Elimination of the Worst Forms of Child Labour Convention, 1999 (adopted at Session No. 87 of the General Conference of ILO).  Protocol on the Sale of Children, Child Prostitution, and Child Pornography, Resolution A/RES/54/263, May 25, 2000 complementing the Convention on the Rights of the Child.

Protect the Right to:  Life  Freedom  Well-being  Health  Respect  Individual and Family Security  Identity  Ownership  Family  Education  Work  Citizenship  Sexual Self- Determination  Studies  Marriage

Punish:  Slavery  Practices similar to slavery –Servitude due to debt –Serfdom –Servile marriage –Trafficking boys, girls, and adolescents  Forced labour  Servitude

Punish:  Removal of organs  Sexual exploitation  Trafficking slaves  Trafficking women and children  Trafficking in persons  Forced prostitution  Forced pregnancy  Forced sterilization

They Are:  Instruments of a constitutional or higher level.  Instruments protecting basic human rights.  Instruments that can be referred to and applied in criminal proceedings, sentences, or administrative proceedings when ratification applies.

International Instruments as References at an International Level in the 21st Century: What does this mean?

Myths  Should be used as models for developing internal instruments.  Are outdated instruments that should be discarded.

Reference Instruments  Convention against Transnational Organized Crime  Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially Women and Children  Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 1949 (?)

Convention Against Transnational Organized Crime, 2000 (Palermo Convention) Palermo Convention Trafficking in Persons Smuggling of Persons Smuggling of Weapons mutatis mutandis

Palermo Convention Concept of Organized Crime Use of Special Techniques Technical Cooperation Victim/Witness Protection Extradition Asset Confiscation Sovereignty Assistance to Victims Obstruction of Justice Mutual Legal Assistance Palermo Convention

Myths  The Palermo Protocol against Trafficking in Persons is an instrument that is foreign to the Convention and/or autonomous.  The definition of the Protocol is an exact copy of a criminal type against trafficking in persons.  The most important element of the Protocol is the definition.  It is an old and outdated instrument.

Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially Women and Children Rights Human

Palermo Protocol  To combat trafficking in persons in a comprehensive manner.  The definition is a reference to establish sanctions at an internal level.  Defines the most relevant topics relating to trafficking in persons: Prevention, Justice Procuration, Assistance/Aid, Protection, Cooperation, Reintegration.  It is a document that was developed 10 years ago but has yet to be implemented in a comprehensive manner.

Justice Procuration Criminal Legislation

Criminal Type(s) Trafficking in Persons

Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially Women and Children, complementing the UN Convention Against Transnational Organized Crime Definition of Trafficking a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; TRANSPORTATION / TRANSFER DEPRIVATION OF FREEDOM EXPLOITATION v v

Elements Defining Trafficking in Persons Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially Women and Children, complementing the UN Convention Against Transnational Organized Crime For the purposes of the Protocol (Article 3) b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article; d) “Child” shall mean any person under eighteen years of age.

Elements Action - Recruitment - Transportation, transfer - Harbouring and receipt Persons Means of Coercion - Threat - Use of force - Abduction - Fraud - Deception - Abuse of power - Position of vulnerability - Exploitation of the prostitution of others or other forms of sexual exploitation - Forced labour or services - Slavery or practices similar to slavery - Servitude - Removal of organs Exploitation Purposes Does not apply to persons under 18 years of age

Criminal Type Guiding Verbs

Country GUIDING VERBS United States To recruit, harbour, transport, provide, obtain Canada To recruit, transport, transfer, receive, retain, hide or shelter To organize, recruit, transport, harbour, receive Mexico To promote, solicit, offer, facilitate, obtain, transfer, deliver or receive Guatemala To recruit, transport, transfer, retain, harbour, receive Belize To participate, organize, conspire, lead Honduras To facilitate, promote, execute, recruit, retain, transport, transfer, deliver, harbour El Salvador To recruit, transport, transfer, harbour or receive, facilitate, promote, favour Nicaragua To attract, recruit, hire, transport, transfer, retain, harbour or receive Costa Rica To promote, facilitate, favour Panama To facilitate, promote, recruit, organize Dominican Republic To recruit, transport, transfer, harbour, receive

Guiding Verbs  To recruit: to attract through deception or force  To transfer: oriented towards uprooting  To transport: to mobilise  To harbour: to shelter, to hide  To receive: to wait for, to meet a person

Guiding Verbs  To recruit  To receive or deliver  To shelter, hide, conceal  To organize  To promote  To facilitate  To favour

Guiding Verbs: Recommendations  To include the entire trafficking process  To involve as many members of the organization as possible  To reduce the range of complicity  To avoid confusion

Criminal Type Means of Committing the Crime

Country MEANS OF COMMITTING THE CRIME United States Through any means Canada Abduction, fraud, deception, threat, force, coercion MexicoPhysical or moral violence, deception, abuse of power Guatemala Does not mention specific means Belize Honduras Aggrav.: Force, intimidation, deception, or promising employment El Salvador Financial benefits Nicaragua Threats, offers, deception Costa Rica Deception, violence, or any means of intimidation or coercion Panama Aggrav.: deception, coercion, taking or retaining documents, positions of vulnerability Dominican Republic Threat, force, coercion, abduction, fraud, deception, abuse of power

Country The generic criminal type requires use of means by adults United States No Canada √ 118 (Abduction, fraud, deception…) Dominican Republic √ (Threat, force…) Belize No No

Country The generic criminal type requires use of means by adults Mexico √ (Physical or moral violence, deception…) GuatemalaNo HondurasNo El Salvador √ (Sexual exploitation, forced labour, etc.) Nicaragua √ (Deception…) Costa Rica No PanamaNo

Means of Committing the Crime  Threat  Use of force  Coercion  Abduction  Fraud  Deception  Abuse of power  Positions of vulnerability  Giving or receiving of payment

Means of Committing the Crime  Physical or moral violence  Abduction  Offers  Taking or retaining documents  Reception

Means: Recommendations  Should not be linked to typical actions  Should be included as an aggravation of the crime  Should cover the entire range of potential situations of deception or force

Consent

Country Consent is not relevant United States √ Canada√ Mexico√ Guatemala √ explicitly Belize√ Honduras√ El Salvador √ Nicaragua√ Costa Rica √ Panama√ Dominican Republic √ explicitly

Consent  Based on the Protocol: Focused on the practice of prostitution  Differentiating between adults and children (persons under 18 years of age)

Consent: Recommendation  Irrelevant in all cases

Criminal Type Purposes

CountryPURPOSES United States Labour or services Canada Exploitation: Labour or services Mexico Sexual exploitation, forced labour or services, slavery, servitude, removal of organs Guatemala Prostitution of others, sexual exploitation, forced labour or services, labour exploitation, mendicity, servitude, sale of persons, removal and smuggling of organs, recruiting children, irregular adoption, irregular adoption procedures, forced pregnancy, servile marriage (Art. 202Ter Criminal Code) Belize Honduras Commercial sexual exploitation (Art. 149 Criminal Code)

El Salvador Sexual exploitation, forced labour or services, practices similar to slavery, removal of organs, fraudulent adoption, forced marriage (Art. 367-B Criminal Code) Nicaragua Slavery, sexual exploitation, sale of children with sexual exploitation purposes (Art. 182 Criminal Code) Costa Rica Acts of prostitution, sexual exploitation, labour exploitation, sexual servitude, labour servitude, slavery, practices similar to slavery, forced labour or services, servile marriage, mendicity, illegal removal of organs, irregular adoption (Art. 172 Criminal Code) Panama Unauthorized paid sexual activity, sexual servitude (Art. 177 Criminal Code) Dominican Republic Mendicity, any form of sexual exploitation, pornography, forced labour or services, servitude due to debt, servile marriage, irregular adoption, slavery or practices similar to slavery, servitude, or removal of organs (Art. 3)

Purposes  Exploitation of the prostitution of others  Sexual exploitation  Forced labour or services  Slavery  Practices similar to slavery  Servitude  Removal of organs

Purposes  Mendicity  Irregular adoption  Sale of persons  Servile or forced marriage  Illegal adoption procedures  Forced pregnancy  Removal of organs  Organ smuggling  Recruitment by criminal groups  Unauthorized paid sexual activity  Pornography  Acts of prostitution

Purposes: Recommendations  Not to repeat elements within the catalogue  To establish the scope of each purpose  To use broad terms  To define the terms that cannot be defined through instruments, jurisprudence, or doctrine  To avoid confusion

Criminal Type Punishment

Punishment  Minimum Punishment: 4 years  Maximum Punishment: Lifetime Sentence  Average: 6-12 years, 8-18 years

Criminal Type Other Aspects

Other Aspects Relating to the Criminal Type  Public Action (?)  Principle of Extraterritoriality  Attempt  Complicity  Justification  Culpability  Purposes in autonomous types  Establishing links  Assessing confluences  Assessing the scope of the punishment

Criminal Proceedings

Procedural Matters  Definition of victim  Denouncement of the victim  Early declaration of the victim  Prescription of the crime  Comprehensive compensation for harm caused  Opportunity criteria (effective collaborator), relating to complicity  Conciliation  Punishment of victims committing crimes

Procedural Matters  Declaration through special means (external)  Civil action oriented towards compensating the harm caused

Procedural Matters: Recommendations  Denouncement and analysis in one hearing  Early declaration in all cases  Prescription of the crime (crime against humanity): In Nicaragua the crime does not prescribe  Comprehensive compensation for harm caused (Fund)  Criteria of opportunity (effective collaborator), relating to complicity: Applicable  NO Conciliation

Procedural Matters: Recommendations  In all cases, declaration through special means (external)  Civil action through a Fund  To establish special provisions for interpreters in cases of trafficking in persons  Rights of the Victim: assistance to victims, NOT punishing victims committing crimes during processes of trafficking in persons  Forensic analyses in a hearing  The definition of victim should include persons dependent upon the victim and persons affected by the crime

Organized Crime

 Law Against Organized Crime (follows similar criteria in all countries, incorporates definitions from the Palermo Convention) –El Salvador (2007) –Guatemala (2006) –Costa Rica (2009) –Mexico (1996) and its reforms –Special Regulations

Organized Crime  Trafficking in Persons: A crime committed by organized crime groups  A special law  Specific provisions in criminal legislation  Advantages of the category of crime in the manifestation of organized crime

Organized Crime: Recommendations  To include trafficking in persons in the catalogue of crimes committed by organized crime groups  An emphasis on the procedural ADVANTAGES for crimes committed by organized crime groups  2 or 3 persons: an organized group

Protection

Country Protection for Victims and Witnesses United States Title 18 USC Section 3521(c), Witness Security Reform Act of 1984 Canada Section 4, Witness Protection Program Act Mexico Federal Law against Organized Crime (?) Guatemala 1996 Law for the Protection of Parties to a Proceeding and Persons Linked to the Administration of Criminal Justice (Decree No ,1996) Dominican Republic Resolution No. 42 on the Victim and Witness Protection Unit

Country Protection for Victims and Witnesses Belize Justice Protection Act Honduras 2007 Law on Protection of Witnesses in Criminal Proceedings El Salvador Special Law for the Protection of Victims and Witnesses, 2006 NicaraguaNo Costa Rica 2009 Law for the protection of victims, witnesses, and other parties to criminal proceedings PanamaNo Dominican Republic (?) Resolution No. 42 on the Victim and Witness Protection Unit

Protection for Victims and Witnesses  Protection for the victim  Protection for the victim/witness  Victims who do not collaborate  Special legislation  Special regulations in legislation  Protection programs

Protection for Victims and Witnesses  Protection for victims who do not collaborate  Special actions for victims of trafficking in persons (includes immigration protection)  Link between protection and assistance

Special Legislation

Country Specialized Legislation United States Victims of Trafficking and Violence Protection Act of 2000 Canada Provisions of the Criminal Code and Immigration Law Mexico Law to Prevent and Punish Trafficking in Persons, 2007 Guatemala Law against Sexual Violence, Exploitation, and Trafficking in Persons, Decree Belize Trafficking in Persons (Prohibition) Act 2003 Honduras El Salvador A specialized bill initiative Nicaragua Costa Rica Law against Trafficking in Persons and Related Activities, Bill No Panama Provisions of the Immigration Law, a specialized bill initiative Dominican Republic Law No Against Migrant Smuggling and Trafficking in Persons, 2003

Special Legislation  Should be comprehensive  UNODC model law  Implementing the Palermo Protocol  Different realities  The criminal type as the core element of special legislation  Division by modules  Human rights basis: victims  Financing

Special Legislation: Recommendations  Principles based on human rights: Specifics  Definitions  Division by modules  An emphasis on assistance for victims  The substantive and the instrumental  The coordinating body  Institutional responsibilities  Links with other special legislations

Special Law Against Trafficking in Persons Assistance Prevention Constitution Organized Crime Migration Protection for Victims Persecution Protection Cooperation International Instruments